Time for contesting a will in NSW
Don’t forget that you have 12 months from the date of death to commence proceedings in NSW.
The duty of an executor/administrator to uphold the will
Hallen AsJ said in Morrison v Abbott [2012] NSWSC 320:
72. It is well established that, in proceedings for a family provision order, the primary duty of the executor or administrator, as defendant, is to uphold the deceased’s will and to put before the court any necessary material that can reasonably be found to assist the court: Vasiljev v Public Trustee [1974] 2 NSWLR 497.
73. Of course, the duty to uphold the deceased’s will is not an absolute duty. In Re Will of Lanfear (1940) 57 WN (NSW) 181, Williams J said, at 183:
In an ordinary case, especially where the estate is a small one, it is the duty of the executors either to compromise the claim, or to contest it and seek to uphold the provisions of the will.
Recovery of an estate debt
Under the Limitation Act 1969 (NSW) a person is given a specified period of time to take action to recover money due to him/her. The time is:
– 6 years commencing from the date the debt first became payable (s. 14(1)(a));
– 6 years from the last repayment made as long as it was made within 6 years of the date the debt first became payable (s.54);
– 6 years from any written confirmation by the payer that he/she owes money to the payee for the debt as long as the confirmation was made within 6 years of the date the debt first became payable (s.54).
Court’s power in relation to costs in a contested will case
Subject to the Rules of Court and to statute, the power to award costs pursuant to s 98(1) of the Civil Procedure Act 2005 (NSW) is discretionary and it is recognised that the discretion is a very wide one (Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72; (1998) 152 ALR 83; Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 322). It must be exercised judicially (having regard to its statutory context, established principle and the circumstances of the relevant case). The overriding statutory context in which this discretion falls to be exercised is that for which provision is made in s 56 of the Civil Procedure Act, namely, the just, quick and cheap resolution of the real issues in dispute: Campolongo v Club Marconi of Bossley Park Social Recreation & Sporting Centre Ltd [2012] NSWSC 815 Ward J at 11.
More on the meaning of de facto relationships
A de facto relationship is a continuing course of conduct and behaviour, not an event at a fixed point of time. No matter how close their involvement in each other’s emotional lives, a conclusion that people are living together as a couple involves consideration of the circumstances in which they are living, including the places at which they are living. The test is not primarily locational, but it has a locational element: Dion v Rieser [2010] NSWSC 50 Bryson AJ at 14.
Determination of a de facto relationship in a contested will case
A de facto relationship requires more than adult persons living together. They must live together as a couple. When one thinks of persons as a couple, one thinks of two people in a romantic relationship. That is the first meaning given in the Macquarie Dictionary (4th ed) with reference to people as a couple … In my view the word in the Property (Relationships) Act 1984, s 4(1)(a), in the context of the extension of relief under the Act to persons in a domestic relationship, connotes two adult unmarried persons living together, united by love, or living together in a romantic relationship. The effect of such a construction is that de facto relationships are confined to heterosexual and homosexual romantic relationships: Gzell J in Ye v Fung [2006] NSWSC 243, at 64-65.
Succession Act 2006 (NSW): Section 60 (d) Financial Resources
“financial resources” … includes:
(a) a prospective claim or entitlement in respect of a scheme, fund or arrangement under which superannuation, retirement or similar benefits are provided,
(b) property which, pursuant to the provisions of a discretionary trust, may become vested in or used or applied in or towards the purposes of the parties …,
(c) property, the alienation or disposition of which is wholly or partly under the control of the parties to the relationship or either of them and which is lawfully capable of being used or applied by or on behalf of the parties to the relationship or either of them in or towards their or his or her own purposes, and
(d) any other valuable benefit.
Marando v Rizzo [2012] NSWSC 739 Hallen AsJ at 105.
Persons entitled to a copy of the deceased’s will
In New South Wales section 54 of the Succession Act 2006 provides a list of persons who have a right to inspect or be given a copy of the deceased’s will. These include: any person named or referred to in the will, a surviving spouse or de facto partner, a parent or guardian, any person who has or may have a claim at law or equity against the estate or any attorney under an enduring power of attorney by the deceased person. Similar provisions exist in other states e.g. Succession Act 1981 (QLD) s33Z; Wills Act 1997 (VIC) s50.
Benjamin order
An order of the kind sought known as a Benjamin order is so styled after the case of In re Benjamin; Neville v Benjamin [1902] 1 Ch 723, a decision of Joyce J. In that case, the administrator did not know whether a beneficiary had perished, and, if so, whether he had done so before the testator. Joyce J held that the beneficiary should be presumed to be dead, and, there having been no claim by any executor of the estate of the beneficiary, that the administrator could proceed on the basis that the beneficiary had not survived the testator: Rein J in Warwick John Nelson, Re the Estate of the late Kevin Stack [2011] NSWSC 764 at 3.
The Inventory of Property
The Inventory of Property is the name given to a document in New South Wales that outlines the assets of the deceased’s estate, including any bank accounts, shares, superannuation and property the deceased owned, solely or jointly. A copy of this document is only available to executors and beneficiaries.
Contact Us
×